The dissolution judgment was entered in June 1995. At that time, father
was 37 years of age, mother was 31 and their child was 2 years old. Mother was awarded
custody of child, subject to father's parenting time, which was to be consistent with the
parenting time allowed in Marion County Court Rule 8.075, unless the parties agreed
otherwise. Generally, the county's rule provides for parenting time on alternate
weekends and alternate Wednesdays, in addition to holiday and summer parenting time.
At the time that the dissolution judgment was entered, the trial court expressed concern
about the parties' ability to manage custody and parenting time:

"The Court, having reviewed the custody evaluation by Lynda
Bridges, acknowledges that each of the parties have [has] demonstrated an
ability to care for the child and further caution the parties that interference
with visitations or a geographical move that would potentially interfere
with visitations would be considered by the Court in any custody
proceedings."

Father filed his motion to modify custody in March 1996, just nine months
after entry of the judgment awarding custody to mother. In support of his request for a
change of custody, father argued that there had been a change of circumstances since the
time of the original award of custody: Father's difficulties in exercising his right to
parenting time, mother's hostile attitude towards him, mother's employment and
residential instability and child's health problems. The trial court held hearings on
October 16 and on November 13, 1996. It awarded father temporary custody at the
November 13 hearing, and scheduled another hearing for December 4.

At the December 4 hearing, the trial court granted father's motion to modify
custody. The court did not explicitly find that a change of circumstances had occurred.
It explained its decision as follows:

"I would have to say that I'm very troubled by the visitation
problems that have occurred in this case. Both before, but more
significantly after the decree. It's obvious from the custody study, and from
my comments from the bench at the time of the decree, that that was a
concern of the custody evaluator and it was a concern of mine if mom got
custody. Those concerns have turned out to be well-founded and the
evidence is that there have been significant visitation problems throughout
this case. It's my conclusion those negatively impact the child, that it is
contrary to the best interest of the child to continue a custodial relationship
that will force him to continue to deal with those kinds of constant
visitation problems."

On appeal, mother assigns error to the trial court's granting of the motion
for modification. Mother contends that the circumstances on which father relies do not
constitute a change of circumstances sufficient to justify modification and that
modification is not in child's best interests.

As the noncustodial parent, father has the burden to show that there has
been a substantial change of circumstances since the time of the original award of
custody. State ex rel Johnson v. Bail, 325 Or 392, 397, 938 P2d 209 (1997); Teel-King
v. King, 149 Or App 426, 429, 944 P2d 323 (1997), rev den 327 Or 82 (1998). It is not
enough to show that something has changed. Id. Father must prove that the changed
condition relates to mother's capacity to properly care for the child. Bail, 325 Or at 397.
It is only if the moving party demonstrates a substantial change of circumstances that the
court engages in the second step of the analysis--whether the modification is in the
child's best interests. Id.

Accordingly, here, we first consider whether father met his burden to show
that a substantial change of circumstances related to mother's ability to care for child has
occurred since the June 1995 award of custody to mother. Although the trial court did
not make an explicit finding that a change of circumstances had occurred, the court's
focus in its discussion of why the change of custody was warranted was on the problems
that father had experienced in attempting to exercise his parenting time with child.
Consequently, we will begin by addressing the circumstances related to father's exercise
of his parenting time.

At the time of the dissolution, mother was living in Ontario, Oregon.
Father obtained employment in Idaho to be near child. Father worked for a paving
company and worked six days a week from May to November. Because of that, he could
not exercise mid-week parenting time, but he did have child with him on alternate
weekends, and mother gave him an extra weekend each month. The first problem that
father experienced in exercising his parenting time was on September 9, 1995. Father
had picked up child on Friday evening and was to return him on Sunday. However,
mother showed up at father's house on Saturday and told him that she intended to move
to Redmond that night. Mother left with child but did not move, apparently because
father objected to the move.

At father's next regularly scheduled parenting time on September 23, a
conflict again occurred between the parties. Father testified that he had advised mother
that he needed her to pick up child on Saturday evening because he had to work. She
apparently agreed. However, when father came to pick up child on Saturday, mother
refused to allow child to leave. The parties had a heated verbal exchange in front of
child, which ended in father grabbing mother's arm and twisting it. Mother called the
police and father was charged with assault, menacing, harassment and reckless
endangerment. He eventually pleaded guilty to harassment and the other charges were
dismissed. At his next scheduled parenting time with child, father picked him up without
incident. The following visit, father was arrested on the charges from the parties' earlier
incident and he was not able to visit with child through November 13, due to a
restraining order. Father also was not given parenting time scheduled for the weekend of
November 24, because child had chicken pox, and the weekend of December 1, when
mother moved to Coos Bay. Since that time, there has been tension between the parties
at times when child has been picked up, occasionally resulting in verbal hostility by both
parties. In one instance, mother threw a suitcase toward father. Nonetheless, father has
been able to fully exercise his right to parenting time since mid-December 1995.

We have required that interference with parenting time must be substantial
to justify a change of custody on that basis. In Hansen and Hansen, 48 Or App 193, 202,
616 P2d 567 (1980), we refused to find a change of circumstances after mother had
impeded father's visitation for two years, because it was "a change which punishes the
children too much and the mother not enough." See also Southworth and Southworth,
113 Or App 607, 612-613, 835 P2d 122, rev den 314 Or 574 (1992) (mother's actions in
making visitation exchanges through male intermediary not a change of circumstances
where no harm to child is shown); Smith and Smith, 62 Or App 728, 733, 662 P2d 772
(1983) (mere hostility between parents does not constitute a change of circumstances);
Morton and Morton, 53 Or App 301, 307, 632 P2d 1 (1981) (mother's interference with
visitation does not justify modification); cf. Birge and Birge, 34 Or App 581, 585-86,
579 P2d 297 (1978) (change of circumstances will be found where hostility is severe and
constitutes campaign to alienate child from noncustodial parent).

As the trial court recognized, the problems between the parties with regard
to father's exercise of parenting time are quite serious and mother's conduct has
contributed substantially to the difficulties. Nonetheless, on these facts, we do not find
that these difficulties rise to the level necessary to constitute a substantial change of
circumstances. The parties had serious problems for four months, significantly reduced
problems for several months, and no problems for the balance of the period before the
modification hearing. With the exception of the time period discussed above, father has
had regular parenting time with child. Further, significantly, the evidence does not
establish that these difficulties have had an adverse effect on child or otherwise have
affected mother's capacity to care for child. Although mother's conduct was at times
reprehensible, there was no evidence that mother was attempting to alienate child from
father, and mother testified that child loves father and that they have a close relationship.
Given that the record does not demonstrate that mother's attempts at interference with
father's parenting time are continuing, we conclude that the problems with parenting time
do not constitute a change of circumstances sufficient to justify a change of custody.

We also conclude that the additional circumstances asserted by father do
not constitute a substantial change of circumstances. The second ground that father
alleged as changed circumstances concerns child's health. The record shows that child
has had health problems, specifically problems with wheezing and coughing that has
been diagnosed as asthma. It is father's belief that those health problems are caused by
mother's smoking. There is no evidence in the record, however, that there is a causal link
between mother's smoking and child's health problems. Further, although mother
apparently has smoked in child's presence, there was a great deal of testimony that
mother does not allow smoking in her house and has smoked only occasionally in the car
with child. She also testified that she is attempting to quit smoking because of her
concern for child's health.

Father also contends that mother's employment instability and her two
changes of residence constitute changed circumstances. Again, on this record, we
disagree. Although mother has changed jobs several times and moved twice, she has had
a reasonable basis for each decision. Mother quit her bartending job because father did
not approve of it, and she did not participate in a CNA radiology training program in
Redmond, Oregon--a program that could have resulted in a stable career with a good
wage--because father threatened to file for custody if she did. Most significantly, father
has not shown that this alleged instability has affected mother's ability "to take care of the
child properly." Finally, father alleges that mother's hostility toward him constitutes
changed circumstances. While it appears from the record that the hostility between the
parties is mutual, fortunately, it has not affected child.

After considering all of the above circumstances, alone and in combination,
we conclude that father has not met his burden to show that changed circumstances
affecting mother's ability to care for child have occurred since the time of the original
award of custody to mother. Because that initial threshold has not been met, we do not
move on to reexamine the trial court's determination at the time of the original award of
custody that it was in the best interests of child to award custody to mother.

Reversed and remanded with instructions to reinstate award of custody to
mother.

2. At oral argument, a question arose as to the applicability of the amended
version of ORS 107.135. Or Laws 1997, ch 707, § 9. However, as the legislation
provides, until December 31, 2001, the amended version does not apply. Rather, section
116, chapter 746, applies. That statute, which became effective August 7, 1997, added a
subsection to ORS 107.135 that provides:

"(10) In a proceeding under this section to reconsider provisions in a
decree relating to custody or parenting time, the court may consider
repeated and unreasonable denial of, or interference with, parenting time to
be a substantial change of circumstances."

However, the judgment here was entered December 20, 1996, and there is no indication
in the legislation or in its history that the legislature intended it to be applied
retroactively. Accordingly, the amended version of the statute is not applicable here. See
Olsen and Olsen, 137 Or App 8, 11, 902 P2d 1217 (1995) (whether a statute is to be
applied retroactively depends on the intent of the legislature).